[Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs
Nigel Roberts
nigel at channelisles.net
Wed Aug 23 07:23:41 UTC 2017
As I think should be clear, of course I can't do that since there is
just no such legal rule (statute or decided case).
Your analogy would, naturally, be one of the arguments that might be
advance in any possible future Claim seeking to advance a proposition
like that in the Weinstein case. There would no doubt be counter-argument.
Since, as yet, there has been no such Claim, let alone a judgment from
which a ratio can be extracted, and absent any statutory provision (of
which I'm not aware of any) it's just not part of the law
And before you can argue about in rem at all, you first need to
establish that a ccTLD is propert and that in rem is relevant (see below).
Respected academic opinion /might/ tend to suggest that ccTLDs /may/ be
property. I personally suspect that a ccTLD delegation would be
considered to be a particular kind of 'thing' if the matter were
considered in England. I would start the legal reasoning with a quote
from Jonathan Sumption QC (as he then was) in British Telecommunications
Plc and Telecom Securicor Cellular Radio Ltd -v- One in a Million and
others CH 1997 B.5421
But that's all it is at this stage, an opinion.
In other words, there's still no authority even for the contention that
ccTLDs are property, let alone whether in rem jurisdiction applies to
such property (which we are not yet sure IS property, yet).
In any event,unless I am misinformed (since US statute law generally
outwith my areas of knowledge) in rem jurisdiction is a statutory
construct of the ACPA and not something that can be applied willy-nilly.
So unless you are adopting a strained construction of the statute, I
suspect it is very likely that no TLD (whether ccTLD or gTLD) is subject
to its provisions.
I have also found the following paper quite interesting when informing
myself about in rem jurisdiction under the ACPA.
See Michael X. Liu, Jurisdictional Limits of in rem Proceedings Against
Domain Names, 20 Mich. Telecomm. & Tech. L. Rev. 467 (2014).
Available at: http://repository.law.umich.edu/mttlr/vol20/iss2/5
On 23/08/17 05:02, parminder wrote:
>
>
> On Tuesday 22 August 2017 06:09 PM, Nigel Roberts wrote:
>> Kavouss, Thiago, all
>>
>> As is clear from the ratio in the Weinstein case, it has not been
>> ruled that the US courts will exercise /in rem/ jurisdiction over
>> ccTLDs. (the question is open -- in rem certainly applies to second
>> level gtld domains, and ccTLD domains registered with a US registrar).
>
> Nigel,
>
> Can you explain to me what is the difference in the eyes of US law and
> its courts between second level domains (managed by registrars and
> registries) by and first level (by ICANN and registries) . That is very
> pertinent, and will be most useful to know...
>
> parminder
>>
>>
>> What IS clear, from history, is that ICANN has, in the past, acted in
>> a way that in my country would be defined as 'blackmail'.
>>
>> Viz: refusing to make IANA changes unless and until a particular
>> country agreed to sign a contract on ICANN's terms over its ccTLD.
>>
>> Others related to that specific ccTLD can confirm their recollection
>> and may do so.
>>
>> Whilst you appear to be agreeing with me on the point of subsidiarity,
>> it is clear to me that providing ICANN-PTI with blankey immunity from
>> all actions it could take, would allow it to return to that behaviour,
>> with impunity.
>>
>> So in fact, ccTLDs would LOSE the subsidiarity they currently enjoy.
>>
>> I fully understand the concerns regarding OFAC etc. But that's a
>> reason for ICANN to work with the General Licencing regime to mollify
>> those concerned. It's not a reason to give IANA the freedom to do
>> whatever it likes without the Rule of Law applying.
>>
>> There is no intrinsic problem that needs solving with the ccTLD system.
>>
>> That system has has been carefully and cooperatively reviewed by ICANN
>> staff, cctLD managers and GAC members over a 7 years period resulting
>> the policy framework we have know.
>>
>>
>> One concern IS certainly the potential effects of OFAC.
>>
>> This does need to be explored further and the consideration of the
>> meaning "prohibited transaction" (I don't think ICANN carries out any)
>> and if it does, the obtaining of a general licence.
>>
>> But this is no reason to tear up the policy work we've done in the
>> ccTLD community over, literally decades, to arrive at the workable
>> system we have today, over the disaster that was ICANN in 2001-2.
>>
>> And isn't this WG about jurisdiction, anyway?
>>
>>
>>
>> On 22/08/17 11:50, CISAS wrote:
>>> Dear Mr Roberts,
>>>
>>>
>>>
>>> Thank you for your email.
>>>
>>>
>>>
>>> Please be advised that email addresses that are not commonly sent to
>>> CISAS can be interpreted as spam by our server and as such will not be
>>> allowed through to the inbox. You original email was un-junked and as
>>> such we should experience no further problems receiving your emails.
>>>
>>>
>>>
>>> I am sorry that any information you received from Bintu was incorrect
>>> and that you felt my answers were evasive. I have sent you the CEDR
>>> Complaints Procedure previously which you will need to use in order to
>>> make a complaint about the CISAS service.
>>>
>>>
>>>
>>> I can confirm that Numbergroup Network Communications (Ireland) Limited
>>> is a member of CISAS. This company also goes by the name of Numbergroup
>>> Network Limited. We can therefore take on complaints about a company
>>> with either of the aforementioned names.
>>>
>>>
>>>
>>> There is no record of a companies named ‘Numbergrp Network
>>> Communications Ltd’ or ‘Numbergrp Ltd’ being a member of CISAS. I
>>> suggest that you contact Ofcom in order to obtain further information
>>> regarding these companies.
>>>
>>>
>>>
>>> Kind regards,
>>>
>>>
>>>
>>> Holly Quinn
>>> CISAS Team Leader
>>>
>>>
>>>
>>>
>>
>>
>>
>> As you must know (from the Weinstein case)
>>
>>
>> On 22/08/17 12:21, Kavouss Arasteh wrote:
>>> Dear All
>>> I have noted some immediate rush and reaction to the proposal made by
>>> Thiago
>>> He raised an important issue which I have also taken with reference to a
>>> Resolution adopted by Plenipotentiary Conference of ITU Busan to which
>>> the United States of America which hosting ICANN venue and ICANN
>>> applicable law regarding non interference of any State in the ccTLD of
>>> other States.
>>> This has nothing to do with the development of PDP in process as it may
>>> takes years to finalize during which the ccTLD of other states would be
>>> detrimentally impacted.
>>> We have established WS2 and its sub grouop dealing with jurisdiction
>>> which is quite eligible to address the issue .We need to understand each
>>> other ^s problems and not make back and fort the issues which is of
>>> fundamental and crucial importance.
>>> Please also see my issue 2
>>> Regards
>>> Kavouss
>>>
>>>
>>> having read our immediate reaction but
>>>
>>>
>>> On Tue, Aug 22, 2017 at 12:23 PM, Nigel Roberts <nigel at channelisles.net
>>> <mailto:nigel at channelisles.net>> wrote:s
>>>
>>> I fully support Jordan's intervention here.
>>>
>>> Neither this group nor the ICANN Board can legislate for ccTLDs -
>>> the strong respecting of the principle of subsidiarity by ICANN is
>>> fundamental to the relationship tween the ccTLD community and ICANN,
>>> enabling the 2003 Montreal Agreement which rescued the
>>> multistakeholder model, reversing the previous year's formal
>>> rejection and abandonment of the ICANN system by ccTLDs.
>>>
>>>
>>>
>>> On 22/08/17 10:58, Jordan Carter wrote:
>>>
>>> Dear Thiago, dear all,
>>>
>>> Dispute resolution regarding ccTLD matters is currently the
>>> subject of a
>>> PDP in the ccNSO.
>>>
>>> This isn't the perfect link but does give some info:
>>>
>>>
>>> https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24-en
>>>
>>> <https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24-en>
>>>
>>> While the existence of the PDP does not prevent this sub-group
>>> of the
>>> CCWG discussing this matter, my understanding of ICANN's bylaws
>>> is that
>>> the Board would not be able to accept any WS2 recommendation
>>> on this
>>> subject. That is a hard won protection of our ccTLD
>>> independence that
>>> has been a feature of the ICANN system since the ccNSO was
>>> formed.
>>>
>>> As such, the Jurisdiction group may prefer to focus its
>>> effort and
>>> energy on matters where implementable recommendations can be
>>> made by the
>>> CCWG.
>>>
>>> Hope this helps,
>>>
>>> Jordan
>>>
>>>
>>> On Tue, 22 Aug 2017 at 1:32 PM, Thiago Braz Jardim Oliveira
>>> <thiago.jardim at itamaraty.gov.br
>>> <mailto:thiago.jardim at itamaraty.gov.br>
>>> <mailto:thiago.jardim at itamaraty.gov.br
>>> <mailto:thiago.jardim at itamaraty.gov.br>>>
>>>
>>> wrote:
>>>
>>> Dear All,
>>>
>>> For your consideration:
>>>
>>> Issue 3: In rem Jurisdiction over ccTLDs
>>>
>>> Description: US courts have in rem jurisdiction over domain
>>> names as
>>> a result of ICANN's place of incorporation, and US courts
>>> and US
>>> enforcement agencies could possibly exercise its exclusive
>>> enforcement jurisdiction over ICANN to compel it to
>>> re-delegate
>>> ccTLDs. This is contrary, in particular, to paragraph 63
>>> of the
>>> Tunis Agenda: "Countries should not be involved in decisions
>>> regarding another country's country-code Top-Level Domain
>>> (ccTLD).
>>> Their legitimate interests, as expressed and defined by each
>>> country, in diverse ways, regarding decisions affecting
>>> their
>>> ccTLDs, need to be respected, upheld and addressed via a
>>> flexible
>>> and improved framework and mechanisms." It is to be noted
>>> that while
>>> paragraph 63 may not state that States have sovereignty over
>>> ccTLDs,
>>> it does establish that States should not interfere with
>>> ccTLDs.
>>> Further, an obligation on States not to interfere with
>>> certain
>>> matters, as ccTLDs, need not be based on the principle of
>>> sovereignty to exist, nor does it suppose that the matter
>>> is one
>>> subject to the sovereignty of States. For States can simply
>>> agree to
>>> limit their ability to interfere with ccTLDs delegated to
>>> other
>>> countries, and this is the principle embodied in Paragraph
>>> 63 of the
>>> Tunis Agenda.
>>>
>>> Proposed solution: ICANN should seek jurisdictional
>>> immunities in
>>> respect of ICANN's activities relating to the management of
>>> ccTLDs.
>>> In addition, it should be included in ICANN Bylaws an
>>> exclusive
>>> choice of forum provision, whereby disputes relating to the
>>> management of any given ccTLD by ICANN shall be settled
>>> exclusively
>>> in the courts of the country to which the ccTLD in question
>>> refer. A
>>> similar exclusive choice of forum clause shall be included
>>> in those
>>> contracts ICANN may have with ccTLD managers, where such a
>>> contract
>>> exists.
>>>
>>> Best regards,
>>>
>>> Thiago
>>> _______________________________________________
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>>> <mailto:Ws2-jurisdiction at icann.org
>>> <mailto:Ws2-jurisdiction at icann.org>>
>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>>>
>>> --
>>> Jordan Carter | Chief Executive, InternetNZ
>>>
>>> +64-21-442-649 <tel:%2B64-21-442-649> | jordan at internetnz.net.nz
>>> <mailto:jordan at internetnz.net.nz>
>>> <mailto:jordan at internetnz.net.nz
>>> <mailto:jordan at internetnz.net.nz>>
>>>
>>> Sent on the run, apologies for brevity
>>>
>>>
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